Court May Decertify a Class If Trial Is Not Feasible

By Bill Wright

The Seventh Circuit Court of Appeals is teaching wage and hour plaintiffs’ lawyers to be reasonable. Espensheid v. DirectSat USA, LLC, No. 12-1943 (7th Cir. February 4, 2013) (Posner, J).

In this case, plaintiffs’ lawyers brought a collective action under the Fair Labor Standards Act and class actions under state law. (For purposes of this appeal, the court noted, the difference between collective actions and class actions does not matter. ) The plaintiff class included employees who were paid for piece work. Consequently, there was no formula to calculate back wages the workers might receive in the litigation – some workers work faster than others.

When certifying the class (and subclasses) the trial court asked the plaintiffs’ counsel how they proposed to try the case. Plaintiff’s counsel proposed 42 individuals to offer testimony, but could not offer any valid way to generalize from the experiences of these “representative” witnesses to the experiences of the thousands of other workers. To try the case, the court would have had to have one hearing for each plaintiff. As a result, the trial court decertified the class, and the Seventh Circuit agreed: “if class counsel is incapable of proposing a feasible litigation plan though asked to do so, the judge’s duty is at an end.”

Not every case is suitable for collective or class treatment. Sometimes you have to fight it out.

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